On October 4, 2013 we discussed on the blog how Abercrombie & Fitch was being sued for religious discrimination when the Equal Employment Opportunity Commission (EEOC) claimed it fired a Muslim employee for wearing her hijab in the workplace, rather than accommodating her religious beliefs.
Shortly after this decision the EEOC published new guidelines on religious accommodation and discrimination in the workplace. The EEOC has clarified its position about employers’ duty to accommodate particular beliefs and practices, as well as the standards for employers to show that a requested accommodation would cause “undue hardship,” that is, “more than de minimis cost.” The new guidelines reiterate that religious accommodation is particularly fact-sensitive and must be handled carefully.
Title VII requires an employer, once on notice that a religious accommodation is needed for sincerely held religious belief or practice, to make an exception to dress and grooming requirements or preferences, unless it would pose an undue hardship. The guidelines emphasize that accommodations are not required if the employer would suffer undue hardship. This determination will be made on a case-by-case basis by the EEOC, where the EEOC considers the potential burden of the conduct of the employers’ business in addition to monetary costs. Morale problems as a result of an accommodation would normally not qualify as an undue hardship, but a shift swap that would require the employer to pay premium wages for an extended period of time would likely qualify as an undue hardship.
Religion is defined very broadly under federal law to include mainstream faiths and practices, but also to include beliefs that are not recognized by any church or organization. The distinction between religious beliefs and personal choices, is illustrated with an example in the new guidelines. A Seventh-day Adventist who believes the scriptures require her to be a vegetarian – even though not all Adventists share that belief is a religious belief. On the other hand, someone who becomes a vegetarian based on health reasons or personal preference is not expressing a religious belief.
Another example given in the guidelines is the contrast between two employees who have tattoos that the employer would like concealed. One has ceremonial symbols expressing devotion to an ancient Egyptian god. The other employee uses body art as a form of self-expression. An accommodation must be considered if displaying the tattoos is in religious observance, but if requiring those tattoos to be concealed would not affect a religious practice it would be permissible.
Another distinction the EEOC makes in the guideline examples is between two employees who hang a “Jesus Saves” poster at their work stations. One employee has a private office, and no other employees complain about the poster. Under these circumstances, EEOC states that allowing the poster would probably be a required accommodation. However, the other employee in the example works at a desk in the lobby and because visitors might think the poster represents the company’s views, the employer can likely prohibit it.
The EEOC will deal with each situation on a case-by-case basis, but the EEOC and the courts are not likely to scrutinize practices that appear to be sincerely held.